COURT FILE AND PARTIES

COURT FILE NO.: CV-12-9780-00CL

DATE: 2015-12-15

SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

RE: MARCUS WIDE of Grant Thornton (British Virgin Islands) Limited, and HUGH DICKSON, of Grant Thornton Specialist Services (Cayman) Ltd., acting together herein in their capacities as Joint Liquidators of Stanford International Bank Limited, Plaintiffs

AND

THE TORONTO-DOMINION BANK, Defendant

BEFORE: Conway J.

COUNSEL: Geoff R. Hall and Junior Sirivar, for The Toronto-Dominion Bank, moving party

Lincoln Caylor, Maureen M. Ward and Nathan J. Shaheen, for Marcus Wide and Hugh Dickson (in their capacities as Joint Liquidators of Stanford International Bank Limited), responding parties

MOTION HEARD: September 16 and 17, 2015 and written submissions

costs ENDORSEMENT

[1] By reasons released on November 9, 2015, I dismissed The Toronto-Dominion Bank’s (“TD”) summary judgment motion.[^1] TD had brought its motion to dismiss the plaintiffs’ claim as statute barred, on the basis that the claim was discoverable more than two years before it was commenced. I found that the issue of discoverability was a genuine issue for trial and could not be fairly and justly adjudicated on the motion.

[2] The plaintiffs now seek their costs of the motion, on a partial indemnity basis, in the amount of $635,000. TD’s position is that an appropriate costs award is $100,000, all inclusive.

[3] The plaintiffs are the joint liquidators (the “Joint Liquidators”) of Stanford International Bank Limited (“SIB”), an off-shore bank in Antigua. SIB sold approximately $8 billion in purported high-yield certificates of deposits in what turned out to be one of the largest Ponzi schemes in history. On August 22, 2011, the Joint Liquidators brought this claim against TD, SIB’s main correspondent bank, on behalf of SIB and its customers, seeking damages (for negligence and knowing assistance) in the amount of USD$5.5 billion.

[4] TD brought a summary judgment motion to dismiss the plaintiffs’ claim in its entirety. The plaintiffs defended the motion with a record consisting of four affidavits from fact witnesses and two expert reports. Most of the witnesses were cross-examined. The plaintiffs prepared a lengthy factum. The motion took 2 days to argue. Written submissions were prepared to address questions posed by the court after the hearing.

[5] The plaintiffs sought to dismiss TD’s limitation defence altogether.[^2] Their primary position was that the claim against TD was not discoverable by the Joint Liquidators’ predecessors (the Former Officeholders) given the unique circumstances they faced between February and August 2009. The plaintiffs argued that in view of these circumstances, it was reasonable for the Former Officeholders not to have investigated potential third party claims before August 2009. A significant portion of the evidence (including the plaintiffs’ expert evidence, for which the plaintiffs seek to recover $177,635.30 as a disbursement) was tendered to support that submission.

[6] I did not dismiss TD’s limitation defence. Rather, I dismissed TD’s motion on the basis that the issue of discoverability in this case could not be determined on a summary judgment motion.[^3] Therefore, while the plaintiffs were successful in defending against the motion, the limitations defence remains a live issue for trial. The plaintiffs will presumably rely on all of the evidence (and, in particular, the expert evidence) in addressing that issue at trial.

[7] In fixing costs, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay.[^4]

[8] I have considered the factors in Rule 57.01(1). This is a large claim, brought on behalf of SIB and over 21,000 customers, seeking USD$5.5 billion. The summary judgment motion would have put an end to the claim. It was obviously of great importance to the plaintiffs. The factual issues relating to discoverability are complex, although the legal issues are only moderately complex.

[9] The plaintiffs had the burden of proving that their claim was brought in a timely manner and to “lead trump or risk losing” on the summary judgment motion. After the plaintiffs delivered their responding materials, TD requested further documents and information from the plaintiffs. TD declined the plaintiffs’ request to cross-examine their overseas affiants by videoconference and required that they attend in Toronto for what turned out to be brief cross-examinations.

[10] In bringing this summary judgment motion, TD could reasonably have expected that the plaintiffs would expend considerable resources defending the motion. However, in my view, TD could not have reasonably expected to pay $635,000 if it did not succeed on the motion. TD’s own costs, on a partial indemnity basis, were just over $111,000.[^5]

[11] Overall, I consider the plaintiffs’ costs excessive and well outside the reasonable expectations of the unsuccessful party for this 2 day summary judgment motion.

[12] I exercise my discretion and award costs of $120,000 to the plaintiffs on a partial indemnity basis, all inclusive, which I consider fair and reasonable. Since the limitations issue remains to be determined at trial, this costs award is without prejudice to the plaintiffs’ ability to claim the balance of their costs of this motion as part of their trial costs.

Conway J.

Date: December 15, 2015

[^1]: Wide v. TD Bank, 2015 ONSC 6900.

[^2]: The plaintiffs’ alternative position was that the summary judgment motion should be dismissed and the limitations issue determined at trial.

[^3]: See paras. 36, 37 and 41 of the Reasons for Decision.

[^4]: Boucher v. Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).

[^5]: I even consider that amount to be high.